International Law, Antonio Cassese, (Oxford, Oxford University Press: 2001)

Part I: Origins and Foundations of the International Community 3

1 The Main Legal Features of the International Community 3

1.1 Introduction 3

1.2 The nature of international legal subjects 3

1.3 The lack of a central authority, and decentralisation of legal ‘functions’ 3

1.4 Collective responsibility 4

1.5 The need for most international rules to be translated into national legislation 4

1.6 The range of States’ freedom of action 4

1.7 The overriding role of effectiveness 5

1.8 Traditional individualistic trends and emerging obligations and rights 5

1.9 Coexistence of the old and new patterns 7

2 The historical evolution of the international community 8

2.1 Introduction 8

3 States as the primary subjects of international law 9

3.1 Traditional and New Subjects 9

3.2 Commencement of the Existence of States 9

3.3 The Role of Recognition 10

3.4 Continuity and Termination of Existence of States 11

3.5 Spatial Dimensions of State Activities 12

3.6 The Legal Regulation of Space, Between Sovereignty and Community Interests 17

4 Other International Legal Subjects 18

4.1 Insurgents 18

4.2 The reasons behind the emergence of new international subjects 19

4.3 International organizations 20

4.4 National liberation movements 21

4.5 Individuals 22

5 The fundamental principles governing international relations 26

5.1 Introduction 26

5.2 The sovereign equality of States 26

5.3 Immunity and other limitations on sovereignty 27

5.4 Non-intervention in the internal or external affairs of other States 30

Part II: Creation and Enforcement of International Legal Standards 33

6 International law-making: Customs and Treaties 33

6.1 Introductory remarks 33

6.2 Custom 34

6.3 Treaties 36

6.4 Codification 41

6.5 The introduction of jus cogens in the 1960s 42

8 Implementation of international rules within national systems 46

8.1 Relationship between international and national law 46

8.2 International rules on implementing international law in domestic legal systems 48

8.3 Trends emerging among the legal system of States 49

8.4 Techniques of implementation 50

8.5 Statist versus international outlook: emerging trends 53

9 State Responsibility 55

9.1 General 55

9.2 Traditional law 55

9.3 The current regulation of State responsibility: an overview 56

9.4 ‘Ordinary’ State responsibility 57

9.5 ‘Aggravated’ State responsibility 63

9.6 The special regime of responsibility in case of contravention of community obligations provided for in multilateral treaties 66

9.7 The current minor role of aggravated responsibility 68

10 Mechanisms for promoting compliance with international rules and pursuing the prevention or peaceful settlement of disputes 69

10.1 Introduction 69

10.2 Traditional mechanisms for promoting agreement 69

10.3 Traditional mechanisms for settling disputes by a binding decision 70

10.4 The new law: an overview 71

10.5 The general obligation to settle disputes peacefully 71

10.6 Resort to traditional means 71

10.7 Strengthening and institutionalizing of traditional means 72

10.8 The establishment of more flexible mechanisms for either preventing or settling disputes 74

Part III: Contemporary Issues in International Law 77

14 Collective Security and the Prohibition of Force 77

14.1 Maintenance of Peace and Security by Central Organs or with their Authorization 77

14.2 Peacekeeping Operations 78

14.3 Collective Measures not Involving the Use of Force 80

14.4 Exceptionally Permitted Resort to Force by States 81

14.5 Use of force when self-determination is denied 87

14.6 The old and the new law contrasted 88

15 Legal Restraints on Violence in Armed Conflict 89

15.1 Introduction 89

15.2 Classes of War 89

15.3 Traditional law in a nutshell 89

15.4 New developments in modern armed conflict 90

15.5 The new law: an overview 90

15.6 Current regulation of international armed conflict 91

15.7 Current regulation of internal armed conflict 99

15.8 The role of law in restraining armed violence 101

Part I: Origins and Foundations of the International Community

1 The Main Legal Features of the International Community

1.1 Introduction

• We jump too quickly to drawing parallels between domestic law and international law.

• The features of the world community are unique.

• Law doesn’t necessarily address itself to individuals, and there are not necessarily central institutions responsible for making law, adjudicating disputes, and enforcing legal norms.

1.2 The nature of international legal subjects

• Most of rules of international law aim at regulating behaviour of states, not that of individuals.

• States are legal entities – aggregates of human beings, owning and controlling a separate territory, held together by political, economic, cultural (and often ethnic/religious) links.

• Within States: Individuals are principal legal subjects, Legal entities are secondary.

• In International community: States (legal entities) are primary subject, individuals are secondary.

• Although states dominate international community, they operate through actions of individuals (e.g. ministers, diplomats).

• But, individuals act not in their personal capacity, but on behalf of collectivities or multitudes of individuals – Hobbes, ‘fictitious person’

• Powerful drive to submit all persons and all territory to exercise of state control.

• State serves to protect individuals from hardship and suffering (as church once did).

1.3 The lack of a central authority, and decentralisation of legal ‘functions’

National legal systems

• have both substantive rules (about how to behave) and organisational rules.

• Organisational rules developed out of power of ruling classes to institutionalise their power and establish relationship between rulers and ruled (Law comes from power).

• All modern states:

• Use of force by members of community is forbidden (except emergencies) – state monopoly on use of violence

• Central organs of state responsible for law making, law determination, and law enforcement. Parliament/monarch makes law, court ascertained breaches of law, and police officers enforced.

• These functions derive from rule of law, not from interests of individuals.

International legal system

• very different because no state has managed to hold power long enough to be able to create a system of law (law comes from power).

• Relations between states remain horizontal, no vertical power structure describing laws

• Lack of centralised power even more obvious today as individuals and corporations have entangled allegiances, and sources of power are spread across the globe in arenas far beyond state.

• Relative anarchy at level of central management in international legal system.

• No central body responsible for three areas of law: making, interpreting, enforcing.

• States act in their own interests, not in the interests of community.

• Each state has power to auto-interpret rules – necessarily follows from lack of courts and compulsory jurisdiction  Legal order is what states will make of it.

• Traditional international law thus greatly favoured powerful states who could exert their interpretation of rules over others.

1.4 Collective responsibility

• Responsibility for violations of rules governing behaviour of states falls on group to which s/he belongs (not on individual transgressor) – v. different from national legal system which is based on individual, rather than collective, responsibility.

• International law works more along lines of tort vicarious liability (e.g. employers) – state becomes liable for actions of its citizens.

• Wronged State can take action against whole State which wrongdoer belongs to, not just against wrongdoer him/herself. Can claim payment of a sum of money or take counter-measures (e.g. expulsion of foreigners, trade sanctions, etc.)

• The whole State community is liable for any breach of international law committed by any State official and that the whole State community may suffer from the consequences of the wrongful act.

• e.g. Corfu incident, 1923 – Italian ambassadors killed on Greek territory, Italy demanded compensation, Greece refused, Italy sent in troops, League of Nations found Greece negligent in failing to protect diplomats, Italy awarded compensation.

• Some say that this form of collective responsibility is characteristic of primitive legal systems (e.g. family feuds, blood revenge).

New trends:

• New class of State responsibility for gross violations of fundamental rules enshrining essential values

• New class of individual responsibility has emerged (previously only pirates), like personal liability of war criminals.